Small Ex Rel. Balthis v. Morrison

Hoke, J.,

concurring: At common law an action for a pure tort was not maintainable by a minor child against its parents while a member of tbe family. For wrongs involving a trespass to, or a misappiopriation of, property an action would lie. For in that respect tbe child is regarded as a separate entity,, and a different principle prevails. But for torts disconnected with contract or proprietary rights, in so far as *587 examined, no snob action bas heretofore been maintained in England, and whenever it bas been attempted in the American courts, such a right bas been consistently rejected, and as shown in the principal opinion, the text-boobs of established merit are in full approval of the principle. Not only is this true by authority, but the position is in accord with right reason. We have had occasion to note, in several of our more recent decisions, that the influences which proceed from a well ordered home are among the chiefest bulwarks of our social order, and for that reason, among others, a family has been always regarded by the law as a government within itself, and to be interfered with only when required for the preservation of the public peace, or for the protection of dependent children as members and potential citizens of the commonwealth. But an interference on any other principle in breach of the family ties and relationships has thus far never been recognized or tolerated.

And the objections urged to the court’s ruling on the resent record are so inadequate and at times irrelevant that they tend rather to confirm than to weaken the decision on the question presented.

It is contended in the first place that the action is really against the Indemnity Company, and an effort to interpose this wholesome common-law principle, to which we have referred, in protection of such company is the merest “camouflage,” but not so. The reason it is required to take note of this alleged right of action on the part of the child against the parent is because the Indemnity Company in its contract has made express stipulation that no liability shall arise against the company unless and until a judgment is first had against the principal — in this instance the father — and therefore it is that the liability of the father is a condition precedent to that of the company, and must first be considered and determined. Such a position can by no means be considered as -camouflage, as we understand the meaning of the term, but it is upholding the integrity of contracts, a principle which lies at the very base of all confidence among men in their business dealings with each other, and in this instance is required also to the proper administration of impartial justice alike to the corporation and to the individual.

Again it is insisted that the courts in their triumphant march towards higher and better things have struck off the shackles which have hitherto restrained the wife from suing the husband in such an action as this, and by that same token the child should be allowed to sue its parents in like case, and Crowell v. Crowell, 180 N. C., 516 , is cited in support of the principle. An examination of this, and like cases, however, and the opinion of Associate Justice Stacy, denying a petition to rehear the Crowell case, supra, in 181 N. C., 66 , will disclose that this right of the wife is based on certain recent legislation, making such definite provision as to her right to maintain this and all other' litigation affecting *588 ber interests that the policy of tbe law upon wbicb this principle rests is beld to have been altered as to the wife, by the legislative will; and for that reason the action by the wife was sustained, but there has been no such legislation in reference to the case of parent and child, and therefore the principle of the common law which forbade the maintenance of any such action as between them should still be allowed to prevail.

'Again it is urged, and with some vehemence and iteration, that to sustain the demurrer on the facts of the present record would be to withdraw the benefits of the law and its courts in cases where it is most needed, to wit, the protection of the weak and of the helpless; but, to my mind, this does not correctly interpret the conditions presented. On the contrary, it is well known that the law of North Carolina is full and searching in its protection of dependent, minor children; so much so that a special department of the government is created and its places filled by humane and diligent, capable officials whose special duty it is to exercise supervision over this matter; and in every county in the State special courts have been established before which vicious, or at times even improvident, parents may be summoned, and there have the conditions and treatment of their children inquired into; and in the decisions of these courts the welfare of the child is more and more recognized as the controlling principle. In addition to this, the arm of the criminal law may be invoked, when necessary, to restrain the strong, to punish the vicious, and to protect the weak and the helpless. Truly the law of North Carolina is ample for the purpose indicated, and the courts have been always swift to enforce it by proper procedure. But the disposition of the matter now before the Court in no way impairs, or tends to impair, the beneficent provisions of this legislation. Our present decision merely holds that a minor child, living in the family and dependent upon its-parents for support, may not institute a private civil suit of this kind against them for its own pecuniary benefit, a proceeding which would tend to invade and break down the integrity and sanctity of the home, and oftentimes in its practical operation might result in the impoverishment of worthy and struggling parents and utterly disqualify them from performing the duties imposed upon them by the law to maintain and nurture all of their helpless offspring. In my opinion, the opposing position insisted upon by these appellants is unwise in policy, unsound in principle, and without support of any well considered authority.

I concur in the opinion which sustains the demurrer and holds that no right of action is presented.